A Seminal Supreme Court Race Case Reverberates a Century Later

Echoes of Plessy v. Ferguson in debate over a color-blind society

By
Robert Marquand, Staff writer of The Christian Science Monitor /
July 9, 1996

WASHINGTON

One hundred years ago, on May 18, 1896, the US Supreme Court issued a ruling that inaugurated "separate but equal" racial segregation in the South. Plessy v. Ferguson remained in effect until it was reversed in 1954 by the court's landmark Brown v. Board of Education decision to integrate public schools.

Regarded at the time as an innocuous rail-car seating case, Plessy halted already sputtering efforts toward equality, spurred by the Civil War, which had led to the 13th and 14th Amendments and a period of integration.

Today, Plessy is seen as one of two seminal cases of the 19th century - the other being the infamous 1857 Dred Scott ruling that confirmed slaves' status as legal property and fed abolitionist passions, helping trigger the bloodiest war on the planet to that date.

At Plessy's centennial, its legacy is under discussion again in a country still troubled by what black thinker W.E.B. Dubois called "the color line."

Arguments over affirmative action, race relations, and legal remedies for past discrimination are taking place concurrently with incendiary events ranging from the burning of black churches in the South to the publishing of works like "The Bell Curve," which purports to offer scientific evidence of black intellectual inferiority. Black ministers from Nation of Islam leader Louis Farrakhan to the Rev. Eugene Rivers of Boston are questioning integration.

"Plessy used to be taught as a dead case, to show students how far we have come," says Steven Wermeil, professor at Georgia State University. "That's no longer true. When you look at the meaning of Plessy today it is difficult to think of it as something dead and overruled. The issues raised 100 years ago by both the majority opinion and the dissent are again new and at the heart of the debate about race and gender today."

At the heart of the debate is the issue of what is appropriate and fair in the law, and how long government should redress past grievances. The powerful new states' rights initiatives of the Supreme Court in the past two years also relate closely to Plessy.

Today, the ruling of 1896 - especially the lone dissent of Justice John Marshall Harlan - is being interpreted in a variety of new ways. In recent years, a conservative majority on the Court has used the concept of a "color blind" society - first articulated in Justice Harlan's dissent - to soften laws requiring race to be taken into account in jobs, schools, and the makeup of Congress and state legislatures. In just the past year, the court has struck down racial voting districts in North Carolina and Texas.

On the last day of the term, in a decision that surprised many scholars, the court decided not to hear a challenge to a lower court ruling for Texas, Louisiana, and Mississippi. That ruling struck down the Bakke case of 1978 that said race could be a factor in admissions policies for colleges and universities.

Yet in the court's most significant decision this year, moderate justices, nearly 100 years to the day of the Plessy ruling, began their opinion by quoting Harlan's dissent - affirming that the state of Colorado could not deny its gay citizens equal protection under the law. Writing for the court, Justice William Kennedy quoted Harlan's admonishment that the Constitution "neither knows nor tolerates classes among citizens."

Lost, sometimes, is the context of Plessy itself. The case emerged in 1892 out of a test by the black leadership in New Orleans of an 1890 Louisiana law that segregated blacks and whites on trains. Blacks chose Homer Plessy, a shoemaker whose great-grandmother was black, partly because of his status as an octoroon - one-eighth black. Plessy bought a first-class ticket in the white section on a train bound from New Orleans to Covington, La., and was arrested. He fought in court and lost. His lawyer, a light-skinned black named Albion Tourgee, took the case to the Supreme Court.

In his argument, Mr. Tourgee said that the classic image of justice was depicted as blindfolded. Thus, "her daughter, the law, might at least be color blind," he said.

"Tourgee actually thought he was going to win," Wermeil says.

The justices, however, influenced by a controversial effort to integrate schools in Boston, decided to circumvent the issue of race. Blacks deserve political and legal rights, the court ruled. But it said social rights, such as seating on trains, were "separate."

Only Harlan took seriously Tourgee's plea, stating it was wrong to separate citizens on the basis of race "on the public highway": "Our Constitution is color blind," he wrote. "...all citizens are equal before the law. The humblest is the peer of the most powerful."

Yet even today, the meaning of Harlan's dissent is widely disputed. "Those who oppose affirmative action cite him, but that's not a fair assessment," says Tinsley Yarbrough, a professor of political science at East Carolina University in Greenville, S.C. "Harlan was dealing with an old style of race law which was based on the theory that blacks are inferior and the desire to maintain them in that inferior status. Modern affirmative-action policies are premised on the idea that some special preference may have to be given to minorities because of a long history of discrimination."

After Plessy, segregation deepened in the South. Police could arrest blacks for attempting to cross over to "whites only" public facilities. In Washington, Woodrow Wilson segregated federal employees in 1913. Not until Brown, the civil rights movement, and some 15 years of cases attempting to enforce Brown's call for equal protection, did legal segregation end.

In the eyes of some legal scholars, Plessy also relates to current attempts on the court to give states more power. Plessy helped build momentum for the Jim Crow laws that denied minorities their rights. The concern still is that, left to their own devices, states may decide to please the majority sentiment at the expense of others. However, the court showed in the Colorado gay-rights case that it is unwilling to exclude a minority group - even when a majority votes in this direction.